The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-01-15

the case OF the contested election Of Lieutenant
governor. for the language of the Constitution
and statutes is hundred fold more emphatic.
and the questions at interest OF more vital im-
portance to the people of the State.
By article of the Constitution each depart
nent of government is made coordinate and in
dependent. and no department of the government
can interfere with another department.. The
language of the Constitution must be strictly
construed, and such is the universal ten
or of the decisions. The Indiana SUI
preme Court constantly adheres to
this constitutional rule and jealousy prevents
ono department from interfering with another
Applying this rule to this case, it is plain that
this court has no jurisdiction to do any acts
whatever il this case, for the only forum having
any jurisdiction OF any of these questions is the
General Assembly elected and chosen by the
people, and designated by the Constitution of
the people as the forum for the settlement of all
of these disputes.
The noon hour having arrived. the court ad-
journed until p NJ When the Attorney gen
eral had concluded his speech, which was filled
with citations from authorities, quite aumber
of members of the bar complimented him upon
the forcible presentation he had made of the
case.
THE ARGUMENT IN THE AFTERNOON.
AT the opening Of the afternoon session MIR.
Jason Brown. of the counsel for the plaintiff.
and Mr.. W. H. H. Miller, one Of Colonel Robert
sons counsel, were engaged in what was evil
IDENTIFY pleasant conversation, though no word
could be heard their talk being in a low
tone of voice These two men, as unlike as any
two: perhaps, that can be found in the State as
men of force and brains, were evidently measur
ing each other. MIR. Browns admiration Of his
trim and clean opponent was evident He was
doubtless making a contrast OF their different
methods of warfare. Mr. Brown being giant
with club while Mr.. Miller skillfully skewers
his adversary upon rapier.
MIR. Smiths counsel aaked leave to file the
original certified record and oath of Col. Robert
5 Robertson which were filed in the Senate as
his munments of title. To this the defendants
counsel objected for the reason that the original
paper belonged TO the Senate, and could not be
taken from the Senate and filed IN any court,
but copies thereof only could be filed in this
court. Also, that it was not in the power Of the
court to take possession of the original, and thus
remove it from the Senate files
The court held that copies should be made,
and that the original should be returned to the
Senate after being read IN evidence. and not
filed as part of the case 1t would have done
the snperserviceahle Secretary Of the Senate
good to have heard the remarks made by Mr..
Miller for thus taking from the records Of the
Senate valuable papers and setting them afloat.
Mr. Miller in beginning to speak, said in a
case like this, when properly presented, the
question of jurisdiction arises at every stap. If
it be of the subject-matter, it cannot be waived
ii it be OF the person, and is presented at the
threshold OF the case, it remains in the case.
and arises whenever the court attempts to make
order at any stage. Upon the FIRST calling of
this matter, yesterday morning, said Mr.. Miller,
Two presented, in the form of a plea in abate-
ment, paper showing that the defendant is not
now, and never has been, a resident of the
county of Marion in the State of Indiana. but
for twenty years last past has been, and still is,
a resident inhabitant and citizen of the county
OF Allen in this State. Upon the statutes of the
State of Indiana, Sections 307. 3O8 and 3l2,
incl I'D hot W hn1
right as against his person to proceed with the
hearing of this cause. The Supreme Court SAYS
a court does not get jurisdiction, and every step
it takes in the course of the is without juris
diction and utterly void unless as to the person
the question is waived. The statute reads that
iu case of the removal of the Governor from of
ice of his death, resignation or inability to
discharge the duties of the Office. the same shall
devolve on the Leutenant-governor, and the
General Assembly shall by law provide
for the case of removal from Office, death,
resignation or inability both of the Governor
and Lieutenant governor, declarin: what officer
! shall then act rs Governor and that such officer
shall act accordingly until the disability shall be
removed or a Governor be selected. It has been
deliberately argued here that this ia not q civil
action, but special proceeding, and that the
court has jurisdiction In any county where any
part of the cause or action arose. Your Honor
| announced from the bench that it was special
! proceeding and not a civil action knew at the
time that the Supreme Court of Indiana had de-
| cided otherwise and SO stated here, and / beg
now to call the attention of the court to the ian.
| guage of the Supreme Court given in the els:
| Indiana, where they had that identical question
! under consideration, and where Judge Howk
/ without a dissenting opinion, distinct AS the En-
elish Ian guage can make it, laid down the Law
| that quo warranto proceeding is a civil action
and governed by the rule that governs civil &C.
| tions, including the right of either party to de
mand trial by jury. Judge Howk goes into
the Legislature of the State from the formation
of HI Grct
it down through the Revised Statutes o.
] 1913 and 1852. I put the Supreme
Court Of Indiana against Judge Turp;e on that
question. Judge Howk, speaking for the court
says it is a civil action Judge Turpie, speaking
for his client says it is a special proceeding
| Special proceedings are not ali civil actions
Habeas corpus is not civil action, nor is the
| adoption Of a child nor ia bastardy. There is
wel-known difference between civil actions and
special proceedings. and it is not worth while t.
| attempt TO dodge on this question. The gentle
men planted their case, ard your Honor planted
your decision yesterday on an assumption tina
it was not civil action, but special proceed
| ing.
1T seems to me- if your Honor pleases, tina
| it is an end of this case here. l mean always t
be respectful to a court, but do not hesitate t.
say that with that statute and that decision upo,
| the statute book. and upon the reports of thi
State, this court has no more right to try thi
case against Colonel Robertson than has an,
justice Of the peace of Marion county, and tina
any attempt to try it is wrong, is violation o
rights guaranteed to him by the statute, AM
that if anybody wants to imrlead hin
in any cause of this kind they must go t.
his home to do it, just they must com
! here X they want to sue either you or me- Th
cour. has jurisdiction, has it, wherever the caus
/ of action lies? Suppose man in Vanderbur
county in making trade of personal propert
has committed fraud, obtained from the o,he
party his notes payable in bank. and money.
you please, and he comes TO Marion county an
isattemptine to transfer those notes into tn
hands of an innocent party for value That h
has succeeded in transferring q par
and is seeking to transfer more
The proposition is that the othe
party may come here and sue him in this court
although his: residence is still in Vanderbur
county, because part OF tse~ carss Of actio
and the wrongs sought to be restrained CON
mitted here. The gentlemen do not produc
any authority in support of any such propose